Citation Nr: 21005348 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-00 047A DATE: February 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected post-operative residual scar, epigastric/umbilical hernia repair, is denied. FINDINGS OF FACT 1. The Veteran has two scars that measure 6.125 squared centimeters, post-operative epigastric/umbilical hernia repair, located on the anterior trunk. 2. The Veteran has two post-operative residual scars, epigastric/umbilical hernia repair, that are painful, but not unstable. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for service-connected post-operative residual scar, epigastric/umbilical hernia repair, have not been met. 38 U.S.C. §§ 1155, (West 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1118, Diagnostic Code (DC) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty service from April 1980 to April 1987. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2019, this appeal was remanded in order to schedule the Veteran for a VA examination. Increased Rating Applicable Rules and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b);38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran’s disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Procedural and Factual Background As a way of background, the Veteran’s service treatment records reflect a surgical repair of an epigastric hernia. Upon separation from service in 1987, there was no evidence of reoccurrence of the hernia. As such, in a June 2004 rating decision, service connection was granted for post-operative residuals of epigastric umbilical hernia repair at a noncompensable rating under DC 7339. Although the Veteran timely appealed this rating decision, an April 2007 Board decision denied entitlement to a compensable rating for postoperative residuals of an epigastric umbilical hernia repair. When the Board issues a decision, it is final. See 38 U.S.C. § 7104. In a January 2014 statement, the Veteran contends that his service-connected postoperative residuals of an epigastric umbilical hernia repair warrant a compensable rating. The Board notes that in September 2016, the RO continued a noncompensable rating under DC 7339-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. However, the evidence reflects that the Veteran’s epigastric umbilical hernia completely healed and that the only residuals associated with the surgery were two scars on this abdominal area (anterior trunk). As such, the RO more appropriately rated the Veteran under DC 7804. Subsequently, in an August 2020 rating decision, the RO increased the Veteran’s post-operative residuals (scars) to 10 percent under DC 7804. As this is a partial grant, the Veteran’s appeal is continued. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim of increase; thus, the appeal period begins on January 28, 2013. 38 C.F.R. § 3.400. A review of the medical records and evidence of record reveals the following. The Veteran was first afforded a VA examination for his hernia in 2009. The VA examiner noted that there were two scars, that were uncomplicated and show no breakdown. The VA examiner noted that there was no hernia present and that it had been successfully repaired. There was no evidence of reoccurrence of the hernia. In a January 2014 VA medical opinion, the VA examiner reviewed the 2009 VA examination report and opinion and all the available medical evidence, and noted that his opinion remains unchanged. In an April 2016 VA examination report for hernias, the Veteran reported symptoms of rectal bleeding. The VA examiner noted a “healed postoperative ventral hernia repair and healed postoperative umbilical hernia incision.” The VA examiner noted there was no indication for a need for a supported belt. The VA examiner identified two abdominal scars. The VA examiner noted there were no scars that are painful or unstable. The VA examiner noted that the Veteran’s rectal bleeding is unrelated to his post-operative hernia scars. During the May 2019 Board hearing, the Veteran testified that his post-operative scars were aching and itchy and have been for several years. Given that the Veteran testified to worsening symptoms, a new VA examination was ordered. The private medical records from Dr. A.W. and other VA medical records show complaints that the scars are itchy. In an August 2020 VA examination for scars, the Veteran reported that his condition has worsened, in that he has pain in the incisions. The VA examiner noted that the Veteran has two scars that are painful (tender to palpation) located in the upper abdominal and umbilical incisions. Specifically, the scars are located on the anterior trunk. The VA examiner identified scar one as an epigastric scar with a length of 4.5 cm by .25 cm and scar two as infraumbilical scar with a length of 10 cm by .5 cm. The scars combined measure 6.125 squared cm. The VA examiner noted that are no scars that are unstable, with frequent loss of covering of skin over the scar. Analysis In the present case, the Veteran seeks a higher rating for his post-operative residuals associated with his epigastric umbilical hernia repair. Specifically, the Veteran contends that his two scars are itching and achy. Although the Veteran was initially rated under DC 7339, the Board notes that under this code, the highest rating the Veteran could be afforded would be a noncompensable rating. Under DC 7339, a noncompensable rating is warranted for wounds, postoperative, healed, no disability, belt not indicated. As previously discussed above, the evidence consistently reflects that the Veteran’s hernia was repaired and has healed. In the 2009 VA examination report, January 2014 medical opinion, and the April 2016 VA examination report, the VA examiners all consistently opined that the Veteran’s hernia was repaired and has healed with no reoccurrence. As such, there is no evidence of a small hernia that is not well supported by belt or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt, as required for a 20 percent rating. Furthermore, there is no evidence that there is a large hernia not well supported by belt under ordinary not well supported by belt under ordinary conditions, as required for a 40 percent rating. And lastly, there is no evidence massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable, as required by a 100 percent rating. Thus, the Board now turns to DC 7804, which relates to scars. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. at Note (3). VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). The August 13, 2018 skin amendments amended Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118 (b) (August 13, 2018). There are no changes to Diagnostic Codes 7800, 7804, 7805, and 7828 under the August 13, 2018 amended version of the skin criteria. In other words, Diagnostic Codes 7800, 7804, 7805, 7828 are exactly the same, both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). In the present case, in the 2009 VA examination report, the April 2016 VA examination report, and the August 2020 VA examination report, the VA examiners have consistently identified only two scars associated with the Veteran’s epigastric umbilical hernia repair. Although the April 2016 VA examiner noted that the two scar were not painful or unstable, the Board finds that Veteran’s scars are painful based on the August 2020 VA examiner’s examination report which notes that the scars are painful, combined with the Veteran’s statements and Board testimony, which notes that the scars are achy. Thus, the rating criteria for a 10 percent rating have been met. The Board also considered whether an additional 10 percent rating is warranted under note (2) ([a]n additional 10 percent may be added if a scar is both unstable and painful.). However, there is no evidence of unstable scars. In fact, in the August 2020 VA examination report, the VA examiner opined that are no scars that are unstable, with frequent loss of covering of skin over the scar. Also, a higher 20 percent rating is not warranted because there is no evidence of three or four scars that are unstable or painful. Along the same lines, a maximum rating of 30 percent is not warranted as the evidence does not reflect five or more scars that are painful or unstable. The Board has considered the Veteran’s disability under the other diagnostic codes pertaining to scars. The Board has considered DC 7800, but his scar is not located on his head, face, or neck to warrant consideration under DC 7800. Nor are the scars shown to be deep (associated with underlying soft tissue damage) to warrant consideration under DC 7801. Nor does the scars cover sufficient area (929 squared cm) to warrant consideration under DC 7802. Again, the August 2020 VA examiner noted that the area covered by the Veteran’s scars is only 6.125 squared cm. The Board notes that the Veteran is already in receipt of a separate rating under DC 7805 for his scars. The rating schedule allows for separate evaluations for scars and for painful scars. DC 7805 states to evaluate other effects of scars under diagnostic codes 7800, 7801, 7802, or 7804. The only applicable code is DC 7804, which compensates painful or unstable scars. Here, the Veteran is already in receipt of a rating under DC 7804 for his painful scars and as explained above the Veteran’s scars are not unstable. Therefore, the Veteran cannot receive a compensable rating under DC 7805 for the same symptoms of pain. Additional compensation for the same scars would constitute impermissible pyramiding, as the Veteran would be compensated twice for the same painful scars. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Thus, a noncompensable rating under DC 7805 is the highest rating permissible under DC 7805. Therefore, no other applicable diagnostic codes will assist the Veteran in obtaining a higher rating. (Continued on the next page)   As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.